Note that for ease of reference the different provisions of the bills/laws discussed here are reproduced at the end of this post.

The Liberal government, which had promised during the last election campaign to reform Canada’s outdated Access to Information Act (ATIA) has tabled its reforms in Bill C-58. First reviews of the bill, by key users of the ATIA such as academics and journalists have been highly critical of the many ways in which the proposed reforms fall short of what was promised.While acknowledging the importance and salience of these critiques, this post will focus on two very specific amendments in this Bill that are most welcome.

Government departments and agencies subject to the ATIA have long been able to refuse to disclose records covered by solicitor-client privilege. This is an important exception. As the Supreme Court of Canada stated in Blood Tribe, “Solicitor-client privilege is fundamental to the proper functioning of our legal system.” (at para9). The court noted that the privilege permits a free flow of legal advice between lawyer and client, and stated that without solicitor-client privilege, “access to justice and the quality of justice in this country would be severely compromised.” (para 9) It is not surprising, therefore that documents covered by solicitor-client privilege would not be disclosable under the ATIA. In the same vein, the right to access one’s personal information under the federal Privacy Act, or the Personal Information Protection and Electronic Documents Act (PIPEDA), is similarly limited – access cannot be had to records containing personal information that are subject to solicitor-client privilege.

While this is understandable, the problem has long been that there has been no proper oversight of assertions of solicitor-client privilege by record-holders. The courts have treated the privilege as so absolute, that only the most explicit statutory language will permit a Commissioner (whether the Information Commissioner or a Privacy Commissioner) to review such documents in order to determine whether the claimed privilege is actually justified. In Blood Tribe, the Supreme Court of Canada found that the rather open-ended language in PIPEDA did not meet the test, and as a result the federal Privacy Commissioner could not review claims of solicitor client privilege in records containing personal information under that statute. Much clearer language was needed.

While the outcome in Blood Tribe is fair enough, a 2016 decision by the Supreme Court of Canada seemed to move from protecting solicitor client privilege to fetishizing it.In Alberta (Information and Privacy Commissioner) v. University of Calgary, the Supreme Court of Canada considered wording in Alberta’s Freedom of Information and Protection of Privacy Act that was quite a bit more explicit than that in PIPEDA, and that appeared quite sufficient to give Alberta’s Commissioner the power to review claims of solicitor-client privilege in government records sought through access to information requests. Yet the majority of the Court determined that Blood Tribe dictated that only the clearest statutory language could derogate from the protection of solicitor-client privilege. They took the position that solicitor-client privilege was no mere privilege of the law of evidence. It arose in circumstances outside the court room, and had the character of “an important civil and legal right and a principle of fundamental justice in Canadian law.” (at para 41) Because of this, the majority ruled that the wording of the statute, which allowed the Commissioner to access records “despite . . . any privilege of the law of evidence” (s. 56(3) was “not sufficiently clear, explicit and unequivocal to evince legislative intent to set aside solicitor-client privilege.” (at para 44) It should be noted that Justice Cromwell wrote a separate opinion in University of Calgary making it clear that he strongly disagreed with the interpretation of the majority, and stating that in his view the language of the statute was perfectly clear and gave the necessary powers to the Commissioner. The majority decision in University of Calgary was so surprising that Ontario’s Information and Privacy Commissioner in his Annual Report released in mid-June 2017, asked the Ontario government to amend very similar language in Ontario’s Freedom of Information and Protection of Privacy Act so as to make it crystal clear that the Ontario Commissioner has the power to review claims of solicitor client privilege in documents being withheld by government departments and agencies.

If passed, Bill C-58 will amend section 36(2) of the ATIA to provide in language that even the most punctilious judge would find hard to ignore, that the Information Commissioner can review records being withheld on the basis of solicitor-client privilege in order to determine whether such privilege is properly claimed. Notably, the bill will also amend the Privacy Act to add similar language giving the Privacy Commissioner the power to review records withheld under claims of solicitor client privilege. Both sets of amendments make it clear that this review does not constitute a waiver of those privileges or of professional secrecy. It is a necessary compromise to ensure a proper balancing of interests. These changes, at least, should be welcome.

Statutory language discussed in the above post:

PIPEDA (interpreted in Blood Tribe and found to be too vague to support review by the Commissioner):

12.1 (1) In the conduct of an investigation of a complaint, the Commissioner may

[. . . ]

(c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible

Access to Information Act (currently):

36 (2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Information Commissioner may, during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds.

Privacy Act (currently):

34 (2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Privacy Commissioner may, during the investigation of any complaint under this Act, examine any information recorded in any form under the control of a government institution, other than a confidence of the Queen’s Privy Council for Canada to which subsection 70(1) applies, and no information that the Commissioner may examine under this subsection may be withheld from the Commissioner on any grounds.

Freedom of Information and Protection of Privacy Act (Alberta) (at issue in University of Calgary and found to be insufficient):

56(3) Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection (1) or (2).

Ontario’s Freedom of Information and Protection of Privacy Act:

52 (4) In an inquiry, the Commissioner may require to be produced to the Commissioner and may examine any record that is in the custody or under the control of an institution, despite Parts II and III of this Act or any other Act or privilege, and may enter and inspect any premises occupied by an institution for the purposes of the investigation. R.S.O. 1990, c. F.31, s. 52 (4).

Proposed Amendment to the Access to Information Act in Bill C-58:

36 (2) Despite any other Act of Parliament, any privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries and litigation privilege, and subject to subsection (2.1), the Information Commissioner may, during the investigation of any complaint under the Part, examine any record to which this Part applies that is under the control of a government institution, and not such record may be withheld from the Commissioner on any grounds.

Proposed Amendment to the Privacy Act in Bill C-58:

34 (2) Despite any other Act of Parliament, any privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries and litigation privilege, and subject to subsection (2.1), the Privacy Commissioner may, during the investigation of any complaint under the Act, examine any information recorded in any form under the control of a government institution, other than a confidence of the Queen’s Privy Council for Canada to which subsection 70(1) applies, and no information that the Commissioner may examine under this subsection may be withheld from the Commissioner on any grounds.